Risk Assessment - Role of theLawyer

May 13, 2009

Dianne Saxe, Ph.D.

Overview What is our role? How much do we have to understand the

technical stuff? How is risk assessment changing?

What is our role? Why do we need risk assessment? How clean is clean for sites that do

not meet generic criteria? Risk assessment is highly technical Essential flexibility, but….

Flexibility means Discretion Discretion means uncertainty, delay,

discrepancies between sites…… Uncertainty and delay mean expenses,

frustration, anger and --

reduced reuse of contaminatedsites.

How safe? Clients and investors want certainty, BUT Public demands safety! Methodology involves judgment

Involves making a decision ONCE that may govern landuse indefinitely

MOE quality control

Context keeps changing: New studies New analytical techniques Public risk tolerance Neighbouring land uses Recent disasters

Law keeps changing New standards, here and elsewhere New regulations, e.g. 153/04

amendments Courts change the rules

Change, uncertainty anddiscretion = A role for lawyers Plus: strong need for clear communications

How can we help? Overall strategy, including whether to attempt

RA Some basics: who, what, where? How clean is clean? Solicitor client privilege Selecting consultants / QPs Contracts with consultants Insurance issues

More fun Liability Contracts on who pays how much for what Litigation Approvals Transitional issues

Yet more fun Financial assurance The Condominium Act Off-site plumes: past and present Multiple sources Horizontal severances and the “on and

under” issue

Really fun Multiple interlocking lawsuits Class actions The role and use of CBRAs Can one community have a different

standard?

Communication with multiplestakeholders, including:

Neighbours Regulators on lenders Others with property interests

How much do we need tounderstand the technical stuff? The more the better Lots of room for good questions But don’t try to be the consultant

Five elements of RA: Hazard identification Dose-response assessment Exposure assessment Risk characterization Risk management plan / CPU

What do we know? How much data How frequent the monitoring How many contingencies Always another “what if?…” Detection limits Quantification limits Data quality

Where do we go from here? Reg. 153/04 proposed amendments Inco class action

St. Lawrence Cement Lafarge Berendson

Reg. 153/04 New generic standards Will drive many more properties to risk

assessment. Tier 2

Thank you!!Saxe Law Office

248 Russell Hill Road

Toronto, Ontario M4V 2T2

Tel: 416-962-5882

Fax: 416-962-8817

Email: admin@envirolaw.com

www.envirolaw.com